Kerns v. Board of Commissioners (888 F. Supp. 2d 1176, 2012)

United States District Court for the District of New Mexico 2012-08-22

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

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

FACTUAL BACKGROUND

This case involves the investigation into the August 6, 2005, shooting of the Bernalillo County 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. Plaintiffs J. Kerns, Archie Kerns, and Mary Ann Kerns brought this federal suit against those involved in the investigation, arrest, and prosecution.

On or about August 6, 2005, at approximately 12:00 a.m., retired Deputy Chief Ed Sauer observed the Bernalillo County 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). Sauer radioed the Special Weapons and Tactics (“SWAT”) supervisor to come to his location, because he had “three witnesses [that say] they know where the shots fired came from.” Deposition of Edward Sauer at 44:9-15 (January 12, 2009), filed May 1, 2009 (Doc. 156-2); Response MSJ ¶ 34, at 5 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). One man kept telling Sauer that the helicopter had been shot down. See Sauer Depo. at 20:16-23; MSJ ¶ 6, at 3 (setting forth this fact).

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

J. Kerns told the police that he heard a pop noise that was so loud it made his ears ring. See J. Kerns Depo. at 156:15-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He explained that the pop noise sounded “like an engine back low or maybe a rifle report, like the sound of a gun going off.” J. Kerns Depo. at 157:19-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He also reported that he heard the sound of rocks kick up from the direction in which he believed he heard the pop noise originated. See J. Kerns Depo. at 162:6-8; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). J. Kerns also provided the police with a written statement wherein he stated that he was “standing on the edge of the property line and the golf course watching the helicopter hovering.” Written Statement of Jason Kerns at 1, filed February 17, 2009 (Doc. 117-6); MSJ ¶ 12, at 4 (setting forth this fact); MSJ Response ¶ 12, at 3 (not disputing this fact).

J. Kerns gave Johnston directions to his home, which is located at 9910 Columbus Circle N.W., on the golf course. See Johnston Depo. at 15:15-19; MSJ ¶ 13, at 4 (setting forth this fact); MSJ Response ¶ 13, at 3 (not disputing this fact). In response to J. Kerns’ report, Johnston sent members of the SWAT and K-9 units to the area of J. Kerns’ residence so the officers could look for evidence where a gunshot might have taken place, or contact anybody else in the neighborhood who may have heard or seen something. See Johnston Depo. at 15:12-15, 16:13-17:7; MSJ ¶ 14, at 4 (setting forth this fact); MSJ Response ¶ 14, at 3 (not disputing this fact); MSJ Response ¶ 37, at 6 (setting forth this fact); City Defendants’ Reply to Plaintiffs’ Response to Their Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiff First Amended Complaint at 3, 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).

Johnston directed Bader, Thompson, and Carter to investigate the area surrounding J. Kerns’ residence. See Bader Ans. at 2; Carter Ans. at 2; Thompson Ans. at 2; MSJ ¶¶ 16, 18, at 4-5 (setting forth this fact); MSJ Response ¶¶ 16, 18, at 3 (not disputing this portion of the fact). Thompson was searching the neighborhood and contacting neighbors, but within fifteen minutes another search team requested the SWAT team, advising that the officers could hear loud rap music and suspected a party, and Thompson went to the residence to assist. See Thompson Ans. at 2; MSJ ¶¶ 17, 18, at 4-5 (setting forth this fact). There was loud music coming from J. Kerns’ residence, multiple cars were at the residence, and miscellaneous items were along the side of the house. See Bader Ans. at 2; Carter Ans. at 2; Thompson Ans. at 2; J. Kerns Depo. 124:16-24; MSJ ¶¶ 16, 19, at 4-5 (setting forth this fact). These circumstances seemed odd to Thompson and the officers discussed the possibility of an armed suspect inside the home. See Thompson Ans. at 2; MSJ ¶20, at 5 (setting forth this fact).

The officers did not report seeing any movement inside the Kerns’ home. See Bader Depo. at 70:21-71:4; MSJ Response ¶ 58, at 9 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). The many officers at the Kerns’ home were searching for “shell casings, guns, [and] people,” but no such evidence was ever found there. Johnston Depo. at 26:6-10, 31:2-7, 42:4-12; MSJ Response ¶ 49, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Bader is a trained human tracker. See Bader Depo. at 29:5-10; MSJ Response ¶ 46, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Johnston communicated with J. Kerns over the police radio to confirm that 9910 Columbus Circle was his home and to inquire where J. Kerns was standing when he heard the popping noise. See Johnston Depo. at 24:2-10; MSJ Response ¶ 52, at 8 (setting forth this fact), MSJ Reply at 3 (not disputing this fact). Johnston did not speak directly with J. Kerns, but spoke through other law enforcement officers, and, using this techñique, Johnston clarified J. Kerns’ perceptions concerning the directionality of the noise J. Kerns heard. See Johnston Depo. at 24:11-25; MSJ Response ¶¶ 53-54, at 8 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Johnston did not ask who was in J. Kerns’ residence or about any of the officer’s observations. See Johnston Depo. at 24:11-21; MSJ Response ¶ 54, at 8 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). The officers investigated the outside perimeter of the J. Kerns’ residence and discovered a broken window in the rear of the house. See Bader Depo. at 39:4-10, 62:8-10; Defendants’ Photograph of Broken Window, filed February 17, 2009 (Doc. 117-12); MSJ ¶ 23, at 5 (setting forth this fact); MSJ Response ¶ 23, at 4 (not disputing this fact). Other than the broken window, Bader did not find any evidence revealing where a shooter may have been standing or to where the shooter may have departed. See Bader Depo. at 54:21-55:10, 86:20-23; MSJ Response ¶ 47, at 7 (setting forth this fact). A. Kerns explains that only the outside pane of the double-paned window had been broken when it was struck by a golf ball, which the officers did not observe on the ground. See J. Kerns Depo. at 254:8-25; Deposition of Michelle Zisser at 50:1-9 (October 17, 2008), filed May 1, 2009 (Doc. 156-10); Deposition of Archie Kerns 88:1-6; 89:14-21, at 1 (October 15, 2008), filed May 1, 2009 (Doc. 156-6); Plaintiffs’ Photograph of Broken Window, filed May 1, 2009 (Doc. 156-6); MSJ Response ¶ 56, at 8-9 (setting forth this fact). 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 Bader Depo. at 38:2-22; 46:6-10; MSJ Response ¶ 55, at 8 (setting forth this fact); Reply at 3 (not disputing this fact). Bader knows that, in his line of work, a broken window is usually not a good sign, especially when gunfire is reported in the area. See Bader Depo. at 62:20-23; April 11, 2012 Griffin Letter ¶ 7, at 2 (setting forth this fact). A golf ball striking the Kerns’ window would not have been out of the ordinary, because the Kern’s backyard borders the eighteenth hole of the Paradise Hills golf course. See A. Kerns Depo. at 87:6-88:6, 89:14-23; Deposition of Mary Ann Kerns at 74:7-75:25 (October 15, 2009), filed May 1, 2009 (Doc. 156-8); Champion Window Co. of Albuquerque, LLC Service Order, filed May 1, 2009 (Doc. 156-9); MSJ Response ¶ 57, at 9 (setting forth this fact).

After checking the area around J. Kerns’ 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. See Bader Depo. at 61:21-65:15; MSJ ¶21, at 5 (setting forth this fact). No one came to the door in response to their knocking and announcements. See Bader Depo. at 61:21-65:15; MSJ ¶21, at 5 (setting forth this fact). 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 Deposition of Michelle Zisser at 39:5-15 (October 17, 2008), filed February 17, 2009 (Doc. 117-9); Deposition of Archie Kerns 79:2-21, at 2 (October 15, 2008), filed February 17, 2009 (Doc. 117-10); Deposition of Mary Ann Kerns 64:20-65:23, at 2 (October 15, 2008), filed February 17, 2009 (Doc. 117-11); MSJ ¶ 22, at 5 (setting forth this fact); MSJ Response ¶ 22, at 4 (not disputing this portion of the fact). Sometime after the officers had knocked on the front door, Johnston was called over to the Kerns’ residence. See Johnston Depo. at 21:9-22, 23:17-24:10; MSJ Response ¶¶ 50-51, at 8 (setting forth this fact); MSJ Reply at 3 (not disputing 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). Johnston did not think that the shooter would be found at the scene, because of the time lag between the helicopter crash and his arrival at the Kerns’ home. See Johnston Depo. at 42:4-12; MSJ Response ¶ 61, at 9 (setting forth this fact). According to Johnston, at that time there were lights on in J. Kerns’ residence, and the music coming from the residence played the entire time. See Johnston Depo. 31:20-25; MSJ Response ¶ 62, at 10 (setting forth this fact). The officers became concerned for the safety of the individuals inside the residence; Thompson and Bader knocked on a door at the side of the house, found the door unlocked, opened it, and instructed any occupants to come outside. See Bader Depo. at 70:5-20, 72:24-73:10; MSJ ¶25, at 6 (setting forth this fact). After several minutes with no response, Thompson, Bad-er, and Carter entered the home, because they were concerned for the safety of any individuals inside given the unsecured door, broken window, unresponsiveness, and J. Kerns’ report of a popping noise. See Bader Depo. at 61:21-65:15; MSJ ¶ 26, at 6 (setting forth this fact). The officers did not seek permission from J. Kerns before entering, even though Johnston had been in radio contact with him. See Johnston Depo. at 32:9-15; MSJ Response ¶ 65, at 10 (setting forth this fact). Given the circumstances with which the officers were presented, Bader stated that, as far as the officer’s knew, J. Kerns’ home was “basically the scene of a crime” and that the officers did not “have the information to tell us otherwise.” Bader Depo. at 65:11-12; MSJ Response ¶ 63, at 10 (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). Thompson identified himself as an officer with the Albuquerque Police Department (“APD”) and spoke with Zisser. See Thompson Ans. at 2; MSJ ¶ 28, at 6 (setting forth this fact); MSJ Response ¶ 28, at 5 (not disputing this portion of the fact). The officers asked Zisser’s consent to look around inside the house. See Zisser Depo. at 46:8-22; MSJ ¶ 29, at 7 (setting forth this fact); MSJ Response ¶ 29, at 5 (not disputing this fact). Zisser stated that she did not feel she could deny the officers’ request, as they had their weapons displayed. See Zisser Depo. 46:19-25; MSJ ¶ 69, at 11 (setting forth this fact). According to Zisser, the officers went quickly around the house with her, and when Zisser informed Bader, Thompson, and Carter that J. Kerns’ parents were asleep in the master bedroom, they did not enter or investigate in that room. See Zisser Depo. at 47:2-14, 48:24-25:4; MSJ ¶30, at 7 (setting forth this fact); MSJ Response ¶ 30, at 5 (not disputing this fact). The officers left the residence without seizing or damaging any property. See M. Kerns Depo. at 74:3-4, 76:1-6; MSJ ¶ 31, at 7 (setting forth this fact). After the search of the Kerns’ home, Montoya stated that he thought J. Kerns’ acoustic perception of events was, at best, “not solid,” and at worst, “misleading,” because law enforcement officers did not “find or see anything” that verified his statements. Montoya Depo. at 58:17-25; MSJ Response ¶ 64, at 10 (setting forth this fact). Montoya also acknowledged that, after searching the Kerns’ residence and talking to his fellow officers, he had not come across any clue that made law enforcement believe that a shot was fired from the Columbus Circle neighborhood or J. Kerns’ home. See Montoya Depo. at 49:19-50:7; MSJ Response ¶ 45, at 7 (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 Doc. 5. The Kerns asserted fifteen claims, each against some or all of the seventeen named Defendants and against ten unidentified John Does, stemming from the arrest and incarceration of J. Kerns. Since the filing of the Amended Complaint, the Plaintiffs have stipulated to the dismissal of all claims asserted against certain Defendants and have stipulated to the dismissal of some claims against other remaining Defendants. 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; (in) 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 Defendant Darren White; (iv) Count IV — false arrest/false imprisonment of J. Kerns under the Fourth Amendment — asserted against Defendants Brian Lindley, Lawrence Koren, and Mike 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 detention/arrest/imprisonment of J. Kerns under the New Mexico Tort Claims Act, N.M.SA.1978, §§ 41-ár-l to - 30 (“NMTCA”) — asserted against Lindley, Koren, and the County; (viii) Count IX— malicious abuse of process under the NMTCA — asserted against Lindley, Koren, and Bernalillo County; (ix) Count X— deprivation of property rights and trespass under the NMTCA — asserted against Lindley, Bader, Thompson, Carter, and Bernalillo County; and (x) Count XI— deprivation of property rights and conversion under the NMTCA — asserted against Lindley and Bernalillo County.

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, 451 F.3d 710, 714 (10th Cir.2006)). The City Defendants asserted that they went to 9910 Columbus Circle “to search for a possible shooting suspect and/or evidence that a shooting occurred in the vicinity of the Kerns’ residence.” MSJ at 9-10. They contended that the scene that confronted them at the residence was unusual, because “[t]hey saw an open garage door, approximately five vehicles parked at this residence, furniture and other miscellaneous items out in the yard all the while they heard loud music coming from this residence.” MSJ at 10. They further asserted that the officers knocked and announced their presence, viewed a broken window, and discussed the possibility of a burglary at the residence. See MSJ at 10. They emphasized that these circumstances arose around midnight at the same residence where J. Kerns heard a sound consistent with rifle fire. See MSJ at 10. The City Defendants argued that exigency justified their entry, because the officers were concerned that someone was in need of assistance “given the scene they observed.” MSJ at 11. They contended that “the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct.” MSJ at 11-12 (citing United States v. Najar, 451 F.3d at 714). They asserted that, once they entered the home, Zisser gave them permission to look around and escorted them around the house. See MSJ at 12. The City Defendants also argued that they have not waived immunity under the NMTCA and that the Court should dismiss the state claims against them. See MSJ at 12-13.

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, 43 F.3d 531 (10th Cir.1994), in which the Tenth Circuit found that a police officer violated the Fourth Amendment when he entered a commercial building after observing an open garage door and suspecting a burglary. See MSJ Response at 12-13. They argued that, in that case, “the mere possibility that a burglary or vandalism may have been committed did not reasonably justify the officer’s search in a commercial building.” MSJ Response at 13. The Kerns also pointed to United States v. Davis, 290 F.3d 1239, 1242 (10th Cir.2002), and argued that it demonstrates that, “when the police enter a home based on the belief that a threat to safety exists, the police must be able to ... point to specific facts detailing a known threat.” MSJ Response at 13.

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.” MSJ Reply at 9. They pointed out that the Kerns do not contest that music was playing at the home and that the back window was broken, and that the Kerns argue that the lights were on, indicating that someone was home. See MSJ Reply at 10. The City Defendants argued that a reasonable belief does not require an absolute certainty and that it “is well settled that officers can reasonably search for victims upon reports of gun fire.” MSJ Reply at 10 (citing United States v. Gambino-Zavala, 539 F.3d 1221, 1226 (10th Cir.2008); United States v. Najar, 451 F.3d at 718).

2. The Court’s October 5, 2009 Opinion.

On October 5, 2009, 2009 WL 3672877, the Court filed its Memorandum Opinion and Order deciding the MSJ. See Doc. 246 (“Oct. 5, 2009 MOO”). The Court held that there were genuine issues of material fact “whether exigent circumstances exist to make the warrantless entry into Plaintiffs!]] Jason Kerns, Archie Kerns, and Mary Ann Kerns’ home lawful,” and found that “Bader, Thompson, and Carter are not entitled to qualified immunity.” Oct. 5, 2009 MOO at 2. In its legal section the Court recited the following with respect to 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 [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 “indisputable” 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).

“Searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 [100 S.Ct. 1371, 63 L.Ed.2d 639] (1980). The Supreme Court of the United States has previously stated that the home is entitled to the greatest Fourth-Amendment protection. See Kyllo v. United States, 533 U.S. 27, 31 [121 S.Ct. 2038, 150 L.Ed.2d 94] (2001)(“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”); Payton v. New York, 445 U.S. at 585 [100 S.Ct. 1371] (stating that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”). The Fourth Amendment does not prevent a government search of one’s home in the absence of a warrant, but it protects against unreasonable searches. See United States v. Najar, 451 F.3d 710, 713-14 (10th Cir.2006)(citing Illinois v. Rodriguez, 497 U.S. 177, 183 [110 S.Ct. 2793, 111 L.Ed.2d 148] (1990)).

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, 536 U.S. 635, 638 [122 S.Ct. 2458, 153 L.Ed.2d 599] (2002). The government bears the burden of proving the exigency exception to the warrant requirement applies. See United States v. Najar, 451 F.3d at 717 (citing United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993)). “That burden is especially heavy when the exception must justify the warrantless entry of a home.” United States v. Najar, 451 F.3d at 717 (citing United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir.1992)).

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, 445 U.S. at 585, 100 S.Ct. 1371). The Court held that the City Defendants had not established, as a matter of law, that “the observations that Bader, Thompson, and Carter made would lead a reasonable officer to the conclusion that there was an immediate need to protect the lives or safety of themselves or others.” Oct. 5, 2009 MOO at 14. The Court found that, in previous cases, the Tenth Circuit had found exigent circumstances were not present “when a possible threat was based on no more than speculation.” Oct. 5, 2009 MOO at 14 (citing United States v. Bute, 43 F.3d at 539). The Court stated:

[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 immunity from tort liability.” Oct. 5, 2009 MOO at 18.

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, 707 F.Supp.2d 1190 (D.N.M.2010) the Court issued its Memorandum Opinion more fully explaining the reasons behind its March 31, 2010 Order. See Memorandum Opinion, filed April 12, 2010 (Doc. 265)(“April 12, 2010 MO”). The Court first decided that Lindley was entitled to qualified immunity as to Count II— unlawful search and seizure and deprivation of property without due process of law — because his search warrant affidavit established probable cause and because Lindley did not knowingly or recklessly include false statements in the affidavit. See April 12, 2010 MO, 707 F.Supp.2d at 1253. The Court next determined that the Kerns were entitled to summary judgment: (i) 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; and (ii) Count IV — false arrest/false imprisonment of J. Kerns under the Fourth Amendment — asserted against Lindley, Koren, and Haag. See April 12, 2010 MO, 707 F.Supp.2d at 1253-54. The Court found that White’s request for J. Kerns’ medical files violated J. Kerns’ right to privacy, because J. Kerns had a legitimate expectation of privacy in his medical records and because White could have achieved his objectives in a less obtrusive manner. See April 12, 2010 MO, 707 F.Supp.2d at 1254-60. The Court held that the right to privacy in medical records was clearly established, because the weight of authority established such a right and because a Tenth Circuit case closely on point, Lankford v. City of Hobart, 27 F.3d 477 (10th Cir.1994), gave 'White notice that requesting private medical records violates the patient’s right of privacy.” April 12, 2010 MO, 707 F.Supp.2d at 1259-61. It found that White violated J. Kerns’ right to be free from an unlawful search and seizure when White requested J. Kerns’ medical records from the veteran’s hospital. See April 12, 2010 MO, 707 F.Supp.2d at 1263. The Court then held that there “is established precedent in the Tenth Circuit that an officer using his authority, to procure medical records without the consent of the patient is a violation of a constitutional privacy right” and that the clearly established prong did not need to be “construed so narrowly as to foreclose liability on one ground and not another, simply because thére is not case law on point for one of the constitutional grounds of the violation.” April 12, 2010 MO, 707 F.Supp.2d at 1264. The Court found that Lindley and Koren were not entitled to qualified immunity on Count IV, for false arrest and false imprisonment, because there were genuine issues of material fact regarding their intent. See April 12, 2010 MO, 707 F.Supp.2d at 1274-76. The Court found that those same issues of material fact precluded summary judgment on Count V, J. Kerns’ malicious prosecution claim against Lindley, Koren, and Haag. See April 12, 2010 MO, 707 F.Supp.2d at 1276. With respect to Haag, the Court held that whether his ballistics analysis constituted reckless indifference was a question of fact for a jury. See April 12, 2010 MO, 707 F.Supp.2d at 1276-82.

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, 663 F.3d 1173, 1177 (10th Cir.2011). The Tenth Circuit answered “no to the first two questions and yes to the last.” Kerns v. Bader, 663 F.3d at 1177.

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, 663 F.3d at 1180-81. It held that, despite both aspects being “in play” before the Court, “the district court did not analyze the clearly established law element” and that the Court “held only that the defendants had actually violated Mr. Kerns’s Fourth Amendment rights.” Kerns v. Bader, 663 F.3d at 1181 (emphasis in original). It found that the Oct. 5, 2009 MOO “addressed only the first part of the two part test for qualified immunity.” Kerns v. Bader, 663 F.3d at 1181 (emphasis in original). The Tenth Circuit asserted that, if it were that there were no constitutional violation then the Tenth Circuit could “simply reverse,” but that “the answer to that question isn’t so clear in this case.” Kerns v. Bader, 663 F.3d at 1181. Instead, the Tenth Circuit remanded the case as “the issue is close and the briefing on appeal less than entirely satisfactory,” emphasizing that many considerations counseling “in favor of proceeding directly to the second qualified immunity element ... also counsel in favor of remanding to ensure the district court addresses the second element before we begin to tangle with a case on appeal.” Kerns v. Bader, 663 F.3d at 1182. With respect to the dissent’s analysis of the qualified immunity question, the Tenth Circuit stated that the dissent relies on “a single sentence in the district court’s self-described ‘analysis’ section,” which “[b]y its own terms doesn’t purport to issue any holding on the second qualified immunity question.” Kerns v. Bader, 663 F.3d at 1182. The Tenth Circuit emphasized that the Supreme Court has instructed courts “not to define clearly established law at a high level of generality” and that “[t]he general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Kerns v. Bader, 663 F.3d at 1183 (citing Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011)). It asserted that a court must ask whether “ ‘every reasonable official would have understood that what he [did] violate[d] that right.’ ” Kerns v. Bader, 663 F.3d at 1183 (alterations in original)(emphasis in originalXquoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). It stated that the “relevant question the district court needed to address ... was ... whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification,” and that to address the question the Court “needed to address the officers’ claim that exigent circumstances existed (based on a belief that someone who had just shot down a helicopter might be hiding in or near the home) and their claim that their intrusion was justified in part because of the consent Ms. Zisser supplied.” Kerns v. Bader, 663 F.3d at 1183.

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, 663 F.3d at 1191 (Holloway, J., dissenting). He commented that the Defendants “contend that the district court erred in its application of the legal standards enunciated in United States v. Najar, 451 F.3d 710 (10th Cir.2006),” but that “their argument rests on rejection of the district court’s holding that the jury must decide questions of fact pertaining to whether a reasonable officer would have perceived an immediate need to protect himself or others under the circumstances.” Kerns v. Bader, 663 F.3d at 1191. He asserted that, on the facts as the Tenth Circuit must take them,

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, 663 F.3d at 1191. Senior Judge Holloway disagreed with the majority’s finding that the Court did not address the second prong of the qualified-immunity analysis. See Kerns v. Bader, 663 F.3d at 1191. He noted that the Defendants “made only a conclusory assertion that the Plaintiffs had not shown the violation of a clearly established right” and that the “district judge prefaced his analysis with a thorough discussion of the applicable law.” Kerns v. Bader, 663 F.3d at 1192. He stated:

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, 663 F.3d at 1192. He emphasized that “general statements of the law are not inherently incapable of giving fair and clear warning.” Kerns v. Bader, 663 F.3d at 1192 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Senior Judge Holloway stated:

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 danger to someone was imminent, then the armed, nighttime entry into the home violated clearly established Fourth Amendment law.

Kerns v. Bader, 663 F.3d at 1192.

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, 663 F.3d at 1193. He stated:

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, 663 F.3d at 1193.

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, 419 F.3d 1097 (10th Cir.2005), it “accepted that a patient has a privacy interest in medical records held by a third party medical services provider,” but pointed out that it had explained that “statutes requiring disclosure of those records to ‘law enforcement’ may not always violate the Fourth Amendment.” Kerns v. Bader, 663 F.3d at 1184 (majority opinion). It emphasized that it had noted that the “question whether, in the absence of a statute, ‘a warrant is required for [law enforcement] to conduct an investigatory search of [medical] records [held by a third party] ... is an issue that has not been settled.’ ” Kerns v. Bader, 663 F.3d at 1184 (alterations in original). The Tenth Circuit noted J. Kerns’ reliance on Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), but noted that “in that ease the Supreme Court expressly declined to answer the question posed in this one.” Kerns v. Bader, 663 F.3d at 1184. It held that, “[a]ccording to the terms of Ferguson itself, then, it hardly placed the Fourth Amendment question before us beyond debate.” Kerns v. Bader, 663 F.3d at 1185. Discussing J. Kerns’ and the dissent’s reliance on Lankford v. City of Hobart, the Tenth Circuit noted that it noted only a “possible” Fourth Amendment violation in “somewhat similar circumstances” and that, “[a]t best, Lank-ford’s equivocation declined to foreclose the possibility of a Fourth Amendment violation.” Kerns v. Bader, 663 F.3d at 1185 n. 2 (emphasis in original). With respect to the Fourteenth Amendment, the Tenth Circuit noted that, “Confirming the lack of a clear answer here, most of the cases Mr. Kerns cites involve state actors who publicly disclosed a citizen’s private information, not law enforcement officers who requested the voluntary production of records held by a third party for use in legitimate law enforcement efforts.” Kerns v. Bader, 663 F.3d at 1186 (emphasis in original). The Tenth Circuit found that there was a meaningful difference between those situations. See Kerns v. Bader, 663 F.3d at 1186. It stated: “If we could be sure that the distinction between public disclosure of government access without a valid purpose, on the one hand, and more limited government access for otherwise legitimate purposes, on the other, is a trivial one we would rule in Mr. Kerns’s favor.” Kerns v. Bader, 663 F.3d at 1186-87. It asserted that the Supreme Court’s cases and “the logic of our own cases preclude such a conclusion and acknowledge instead that such a distinction might make a constitutional difference” such that J. Kerns had “failed to identify clearly established law render