Kerns v. Bader (No. 9-2273) is a lengthy opinion concerning a set of lawsuits by an individual wrongly arrested for shooting down an Albuquerque police helicopter (charges were later dropped after the police ballistics expert changed his opinion regarding whether the bullet found in the helicopter could have come from the guns owned by the plaintiff). Somewhat unusually, all of the defendants were denied qualified immunity and appealed that denial, rather than the other way around. Because it touches on a number of qualified immunity issues, and included a detailed dissent, I have simply summarized the high points.
The first set of defendant officers entered the Plaintiffs’ home the night of the shooting without a warrant; allegedly because they believed the shooter might be inside. The district court analyzed only the first prong of the qualified immunity test (the existence of an actual violation of the plaintiff’s Fourth Amendment rights) and did not determine whether the right violated was clearly established. The Tenth Circuit considered this issue to be fact specific, and a close call. It accordingly remanded this issue to be addressed by the district court in the first instance. The dissent would have affirmed the denial of qualified immunity, as it believed the issue of the presence of exigent circumstances was a factual issue that the court could not review as part of an interlocutory appeal.
The second defendant allegedly violated the plaintiff’s Fourth and Fourteenth amendment rights by asking a hospital to share records concerning the plaintiff’s psychiatric treatment to determine whether he was permitted to own certain guns found in his home. The Tenth Circuit held that the law in this area was not clearly established and reversed the denial of qualified immunity. The dissent questioned the defendant’s decision to seek highly personal medical records of treatment for psychiatric conditions, rather than simply search public records for an adjudication of competency. It argued that he “undertook to obtain all of … [plaintiff’s] records, in spite of their privileged nature, without consent, without a warrant or any other judicial process, in the complete absence of exigent circumstances, and without probable cause; his request was based only on his suspicion that a crime might have been committed. If constitutional privacy protections mean anything at all, this conduct violated [p]laintiff’s right of privacy.”
The final set of defendants was accused of false arrest, false imprisonment, and malicious prosecution. The Tenth Circuit held that because probable cause existed to support the plaintiff’s arrest and detention until the charges against him were dismissed, the defendants were entitled to qualified immunity. The dissent concluded that a proper affidavit would not have demonstrated probable cause.